Is it open to a Claimant to apply to add a claim of unfair dismissal via the agenda she prepares for a Preliminary Hearing on case management?
Yes, is the unsurprising but abbreviated answer of the EAT in Ministry of Defence v Dixon.
HHJ Eady QC said this case "offers a salutary lesson in the need to pay attention to what an unrepresented party is trying to say, rather than making assumptions on their behalf". It also summarises the law on raising new points on appeal.
Mrs Dixon was a teacher engaged on a series of one year fixed term contracts by the Ministry of Defence. Before the expiry of her fourth contract, Mrs Dixon presented her claim for a declaration of permanent employment status. Her employment then terminated. Her agenda for a Preliminary Hearing included an application to amend to include a claim for unfair dismissal. The Ministry of Defence accepted that there was an existing dismissal claim without suggesting it was premature. The tribunal agreed the issues included unfair dismissal.
Two months later, the Ministry of Defence applied for the claims to be struck out, arguing cutely that the unfair dismissal claim was premature. The tribunal allowed the claim to proceed, finding that either the claim had not been presented prematurely or that it had not been reasonably practicable to present the claim in time, notwithstanding that no further claim had yet been issued. The tribunal did not appear to have considered Mrs Dixon's previous application to amend. The Ministry of Defence appealed.
The EAT held that the tribunal had erred in its reasons for allowing the unfair dismissal claim to proceed but remitted the matter to the tribunal to consider the "new" point raised by Mrs Dixon at the appeal, her application to amend the claim. That application should be determined in accordance with the principles in Selkent Bus Company Ltd v Moore.
Thanks to David Leslie of Lyons Davidson for preparing this case summary.